FJC Security Services Inc.

FJC SECURITY SERVICES 929 360 NLRB No. 115 FJC Security Services Inc. and United Government Security Officers of America International Un- ion and Its Local 350, Petitioner and Interna- tional Guards Union of America, (IGUA) Local 137, Intervenor. Case 10–RC–115744 May 21, 2014 ORDER DENYING REVIEW BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND SCHIFFER The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer’s Request for Review of the Regional Director’s Decision and Direction of Election dated De- cember 11, 2013, is denied as it raises no substantial is- sues warranting review.1 In denying review, we do not rely on the Regional Di- rector’s finding that UGL-UNICCO Service Co., 357 NLRB 801 (2011), and Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), are inapplicable because the Employer and Intervenor reached an agreement prior to the filing of the petition. Instead, for the reasons stat- ed by the Regional Director, we conclude that under UGL-UNICCO and Lee Lumber, there was no successor bar at the time the petition was filed because a “reasona- ble period for bargaining” that followed the Employer’s commencement of negotiations with the Intervenor had elapsed. See UGL-UNICCO, supra, slip op. at 808–809. Although the parties here disagree on the proper appli- cation of the successor bar to the facts of this case, no party has argued that the Board should modify or over- rule UGL-UNICCO. Contrary to our concurring col- league—who would reject the successor bar and return to the rule of MV Transportation, 337 NLRB 770 (2002)— we do not believe that UGL-UNICCO is “inappropriate,” “contrary to the Supreme Court’s decision in Burns,”2 or “inconsistent with the Act.” Nor do we see any need, on this occasion, to address his criticisms of either the suc- cessor bar generally or the details of its application. To do so would simply further delay the tally of ballots in this case, where we all agree the Regional Director properly directed an election. MEMBER MISCIMARRA, concurring. In UGL-UNICCO Service Co., 357 NLRB 801 (2011), the Board overruled MV Transportation, 337 NLRB 770 (2002), and reinstated the “successor bar.” Under that doctrine, when a business changes hands, and if the new employer is a “successor” under NLRB v. Burns Security 1 The Regional Director’s Decision and Direction of Election is at- tached as an appendix. 2 NLRB v. Burns Security Services, 406 U.S. 272 (1972). Services, 406 U.S. 272 (1972), the incumbent union is granted an insulated period—a “reasonable period for bargaining”—during which its majority status may not be challenged. Thus, if a representation petition is filed during that insulated period—whether by employees, the successor employer, or a rival union seeking to oust the incumbent—the petition will be dismissed. It warrants emphasis that one of the Board’s primary responsibilities under the Act is to conduct elections so employees may decide for themselves whether and by whom they wish to have union representation. A “bar” constitutes an exception where the Board will refuse to conduct an election notwithstanding evidence that a sub- stantial number of employees (at least 30 percent) have indicated that they wish to make a different decision about union representation.1 In the present case, the employees already are repre- sented by one union (the Intervenor), and a representa- tion petition was filed by a different union (the Petition- er). Normally, the Board would process the petition, and a Board-conducted election would determine which un- ion is supported by a majority of employees.2 However, the Employer maintains that the petition must be dis- missed based on its argument that, under the “successor bar” doctrine reestablished in UGL-UNICCO, supra, a “reasonable period for bargaining” had not yet elapsed. My colleagues reject this argument, finding that the Re- gional Director properly directed an election because the “reasonable period for bargaining” under UGL-UNICCO had elapsed. I agree with the result my colleagues reach, but not with their rationale. I would adhere to the standard es- tablished in MV Transportation, supra, where the Board held that “an incumbent union in a successorship situa- tion is entitled to—and only to—a rebuttable presump- tion of continuing majority status, which will not serve as a bar” whenever a rival union petition is filed. 337 NLRB at 770. Based on MV Transportation, and for reasons stated by former Member Hayes in his UGL- UNICCO dissent, I would find that the newly filed peti- tion warrants an election, without any evaluation of whether a “reasonable period for bargaining” had elapsed. I believe the successor-bar rules adopted in UGL- UNICCO are inappropriate and inconsistent with the Act in several respects. 1 Under the Board’s Rules, a representation petition will be pro- cessed only if the petitioner provides written signatures from at least 30 percent of unit employees supporting the petition. 2 Consistent with the Board’s practice, the ballot would also give employees the choice not to be represented by any union. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 930 As an initial matter, the Board in UGL-UNICCO de- scribed the maximum successor-bar period by reference to the 1-year “certification bar” that protects newly certi- fied unions that prevail in an NLRB-conducted election. Thus, the Board in UGL-UNICCO pointed out that “1 year is the length of the insulated period for newly- certified unions.” 357 NLRB 801 at 809. However, as described in UGL-UNICCO, the successor bar would not start running when the successor is first obligated to rec- ognize and bargain with the union. Rather, the running of the successor bar would commence on the date of the first bargaining session. Id.3 Therefore, UGL-UNICCO provides that the successor-bar period in many cases would last more than a year after the successor employer must recognize the incumbent union. It is anomalous to impose a longer bar in successorship situations than would apply to cases involving a certified union follow- ing an NLRB-conducted election.4 More generally, UGL-UNICCO varies the length of the bar—in particular, the “reasonable period for bar- gaining”—depending on whether the successor employer exercised its lawful right under Burns to establish differ- ent initial terms and conditions of employment. Burns, 406 U.S. at 294–295. According to UGL-UNICCO, if 3 Although UGL-UNICCO contains language indicating that the successor bar begins running on the date of the first bargaining session, 357 NLRB 801 at 809, it appears that the Board would rely on the bar (and thereby decline to process rival union or decertification petitions) as soon as the successor became obligated to recognize and bargain with the union. In this respect, the successor bar under UGL-UNICCO would presumably bar representation petitions even before it started to run. It appears that the recognition bar would likewise be given effect immediately upon recognition, even though it would not start running until the first bargaining session. See Lamons Gasket Co., 357 NLRB 739, 748 (2011). In my view, such incongruities do not have support in the Act. If there is a “successor bar,” it should begin running when an entity becomes a successor, and if there is a “recognition bar,” it should begin running when an entity extends recognition. 4 A newly certified union faces a three-fold challenge: to establish a new bargaining relationship with the employer, to attain familiarity with the business, and to develop a new relationship with employees in the bargaining unit. An incumbent union in the successor context has only the first challenge because, under Burns, the union representing any successor employer has already represented a majority of the suc- cessor’s employees (when they were employed by the predecessor), and the successor’s obligation to recognize the union is dependent on sub- stantial continuity in the business (with which the union, therefore, is already familiar). Burns, 406 U.S. at 280–281. Although successor- ship situations can involve uncertainty and an “unsettling transition period,” it is significant that the Supreme Court has held these consid- erations only warrant a “rebuttable presumption of majority status . . . despite the change in employers.” Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 41 (1987) (emphasis added); cf. Burns, 406 U.S. at 279 fn. 3 (indicating that the certification bar’s “almost conclusive presump- tion” of majority support continues for a reasonable period, “usually a year,” after which “there is a rebuttable presumption of majority repre- sentation”). the successor adopts the predecessor’s terms and condi- tions, the length of the “reasonable period for bargain- ing” will be 6 months after the first bargaining session. If the successor lawfully established different initial em- ployment terms, the “reasonable period for bargaining” will be longer—between 6 months and a year after the first bargaining session—and the determination of whether a reasonable period for bargaining has or has not elapsed will depend on how the Board applies the multi- ple factors set forth in Lee Lumber & Building Material Corp., 334 NLRB 399 (2001). For several reasons, this framework is contrary to the Supreme Court’s decision in Burns and inconsistent with the Act. First, consistent with the treatment of some other peti- tion bars,5 if the Board applies a successor bar, I believe it would be preferable for the bar to exist for a specified time period like 6 months (rather than a “reasonable pe- riod for bargaining”) so that everyone could clearly un- derstand whether and when the Board would process any petition.6 Second, when a successor has lawfully recognized the predecessor’s union, Lee Lumber should not be the basis for determining the duration of the insulated period (in- deed, there should be no insulated period). In Lee Lum- ber, the Board was dealing with an employer that had unlawfully withdrawn recognition from the union and unlawfully changed employees’ terms and conditions of employment. To remedy these unfair labor practices, the Board ordered the employer, among other things, to bar- gain with the union. When setting the duration of a rea- sonable period for that bargaining, during which the un- ion’s majority status cannot be challenged, the Board 5 Under Sec. 9(c)(3), 29 U.S.C. § 159(c)(3), an “election bar” exists for a 12-month period following a valid election. As noted in the text, the Board has applied a “certification bar” for a 1-year period after a union is certified following a Board-conducted election. See Brooks v. NLRB, 348 U.S. 96, 103 (1954) (approving the Board’s certification- year policy). A “contract bar” generally exists after the execution of a collective-bargaining agreement for up to 3 years, General Cable Corp., 139 NLRB 1123 (1962), during which a petition may be pro- cessed only if filed between 60 and 90 days prior to the agreement’s expiration or 3 years, whichever is later, Leonard Wholesale Meats, 136 NLRB 1000 (1962). However, the Board with the approval of the Supreme Court has applied “reasonable period” bars in cases involving voluntary recognition and bargaining orders. See, e.g., Franks Bros. Co. v. NLRB, 321 U.S. 702, 705–706 (1944); NLRB v. Gissel Packing Co., 395 U.S. 575, 613 (1969). 6 Cf. Appalachian Shale Products Co., 121 NLRB 1160 (1958) (set- ting forth rules for determining the adequacy of a contract to bar an election, and endorsing “objectivity based on known standards”); Deluxe Metal Furniture Co., 121 NLRB 995 (1958) (setting forth rules pertaining to timeliness so that “unions and employees will now know precisely when they may be expected to file a petition in order to obtain an election”); Vickers, Inc., 124 NLRB 1051, 1052 (1959) (“[T]he Board is convinced of the desirability of establishing specific periods for the timely filing of petitions.”) (emphasis in original). FJC SECURITY SERVICES 931 explained that “when such unfair labor practices have been committed, the lingering effects of the unlawful conduct must be effectively eliminated before employees can exercise free choice.” Lee Lumber, 334 NLRB at 401 (emphasis in original). The situation in Lee Lumber is widely different from the situation in which a succes- sor employer lawfully recognized the union without any unfair labor practices. When a successor employer has recognized the union and otherwise satisfied its bargain- ing obligations, its employees should have the opportuni- ty to exercise their own free choice without delay in a Board-conducted election if there is a valid petition, which is consistent with the rebuttable presumption of majority support recognized by the Supreme Court in Fall River Dyeing, supra. In any event, it is incongruous to fix the duration of the period during which employees are denied the right to participate in an election based on a case—Lee Lumber—where the employer refused to satisfy its bargaining obligations under the Act. Third, it is objectionable to impose a longer insulated period when a successor has exercised its right under Burns to establish different initial terms and conditions of employment. By doing so, the Board in UGL- UNICCO undercuts a fundamental holding of the Su- preme Court’s decision in Burns, where the Court con- cluded that a successor employer “is ordinarily free to set initial terms on which it will hire the employees of a pre- decessor.” 406 U.S. at 294. The Supreme Court in Burns relied on policy considerations that are potentially important to employers, employees, and unions, which the Board cannot disregard or effectively overrule. In the Court’s words: [H]olding . . . the new employer bound to the substan- tive terms of an old collective-bargaining contract may result in serious inequities. A potential employer may be willing to take over a moribund business only if he can make changes in corporate structure, composition of the labor force, work location, task assignment, and nature of supervision. Saddling such an employer with the terms and conditions of employment contained in the old collective-bargaining agreement may make these changes impossible and may discourage and in- hibit the transfer of capital. 406 U.S. at 287–288 (emphasis added). As a matter of law, the Board lacks authority to dimin- ish the Court’s holding in Burns establishing that, even where a successor employer must recognize and bargain with the precedessor’s union, the successor may lawfully establish different initial employment terms, and it is not bound by the predecessor’s collective-bargaining agree- ment. And as a matter of policy, if a successor employer lawfully exercises these rights—for reasons that may advance the interests of the employer, employees, and the union—the Board should not penalize employees by depriving them, for a longer period, of their right to de- cide in an election whether and by whom they wish to be represented. In short, when a successor employer is required to rec- ognize and bargain with a predecessor’s union, the union should be afforded the rebuttable presumption of em- ployee support that the Supreme Court upheld in Burns and Fall River Dyeing. However, if the Board applies a successor bar that involves an irrebuttable presumption for some period of time, (i) the bar should exist for a definite period so that employees, unions, and employers clearly understand whether and when a petition may be processed; (ii) the length of the bar should not depend on the multifactor analysis set forth in Lee Lumber; (iii) the period should commence running when the successor is first required to recognize and bargain with the union rather than when the parties have their first bargaining session, because a successor bar may otherwise be longer than the 1-year bar applicable to a newly certified union following a Board-conducted election; and (iv) the exer- cise of the successor’s right to establish different initial employment terms should not be a basis for making the bar period longer than 6 months. In successorship situations, a rebuttable presumption of employee support or a shorter-duration successor bar does not automatically defeat the union’s representative status. If the posttransaction employer is a legal succes- sor, it is required to recognize the union, to engage in good-faith bargaining, and to refrain from any other un- fair labor practices. The processing of any employee or rival union petition will only occur if the petition, at a minimum, is supported by 30 percent of the unit employ- ees. If the Board processes a petition and conducts an election, employees may vote to continue their represen- tation by the incumbent union. However, this outcome, with only the most limited exceptions, should depend on what a majority of employees choose rather than being determined by the Board based on bar doctrines that pre- clude Board-conducted elections for an indefinite period of time. For these reasons, I concur. APPENDIX DECISION AND DIRECTION OF ELECTION The Employer, FJC Security Services, Inc., is a New York corporation with a principle office in New York, New York, which provides security guard services under contract with the Federal Protective Service in Nashville, Tennessee and sur- rounding areas. Pursuant to a petition filed by the Petitioner on October 28, 2013, and amended on October 31, 2013, a hearing DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932 was held on December 3, 2013,1 to resolve issues raised by the petition. The Petitioner and a representative for the Employer appeared at the hearing. No representative of the Intervenor attended the hearing, although the record indicates the Interve- nor was timely served with a copy of the petition and Notice of Representation Hearing. All parties filed post hearing briefs which have been duly considered. As discussed more fully below, during the hearing issues were raised as to whether there were successorship and/or con- tract bars to the processing of the Petition in this matter. Hav- ing duly considered the matter, I have concluded there is no successorship bar and no contract bar prohibiting the pro- cessing of the Petition. Accordingly, I will direct an election. PROCEDURAL HISTORY In its original Petition, the Petitioner indicated it was seeking a unit of all full and part time employees employed by the Em- ployer performing security services in Nashville, Jackson, and Memphis, Tennessee, excluding all clerical employees, profes- sional employees and supervisors as defined in the Act. Upon learning the Employer no longer provided services in Jackson and Memphis, on October 31, the Petitioner amended its Peti- tion to seek an election in a unit of all full-time and shared-time court security officers and lead security officers employed by the Employer under contract with the United States Marshals Service in Nashville, Tennessee at 801 Broadway, and 701 Broadway, and Ninth Ave, Nashville, Tennessee Ave. all of which are part of the Middle District of Tennessee judicial district excluding all other employees, office clerical employees professional employees confidential employees and supervisors as defined in the Act. Prior to the hearing, the Petitioner and the Intervenor agreed to enter into a Stipulated Election Agreement for an election to be conducted by mail ballot in a unit which included all securi- ty officers including all protective security officers and lead security officers (sergeants) assigned under contract with the Federal Protective Services (Contract HSHQE4-12-D-00004 and any successor contracts) in Nashville, Tennessee, and the surrounding areas excluding all office clerical employees, pro- fessional employees, and supervisors as defined in the Act. However, the Employer refused to enter into the agreement. At the hearing on December 3, the Petitioner formally amended its Petition to seek a unit of all protective security officers and lead security officers (sergeants) employed by the Employer assigned under the contract HSHQE4-12-D-0004 and any successor contracts in Nashville, Tennessee, and surround- ing areas excluding all office clerical employees, professional employees, and supervisors as defined in the Act. During the hearing, the Employer maintained that the Peti- tion should be dismissed both because it had recognized the Intervenor as the representative of the employees being sought (successor bar) and had entered into collective-bargaining agreements which barred processing of the Petition (contract bar). In its posthearing brief, counsel for the Employer advises 1 Processing of the case was blocked from November 5, 2013, be- cause of a charge filed in Case 10–CA–116337 by the Intervenor, until November 18, 2013, when the charge was withdrawn. the Employer is no longer contending there is a contract bar but continues to assert there is a successor bar. Notwithstanding its willingness prior to the hearing to enter into an election agreement, in its posthearing brief the Interve- nor now asserts the existence of a contract bar. Specifically, in its brief, the Intervenor states, “We originally opposed the other union where they amended their petition to represent a site and local other than the IGUA at the same address and building in Nashville, Tennessee. Excluding any outpost under the same contract.” The Petitioner maintains the period of time for a successor bar has passed and that any contracts the Employer and the Intevenor may have entered into could not serve as a bar as they were executed long after the Petition was filed. FACTS The Employer was awarded contract HSHQE4-12-D-0004 by Federal Protective Services to provide security to services, effective December 1, 2012, for several government agencies including but not limited to the Social Security Administration and the Internal Revenue Service in Nashville, Tennessee, and surrounding areas (described as middle Tennessee).2 Upon obtaining the contract, the Employer hired approximately 95 percent the employees formerly employed by Security Consult- ants Group, Inc/Paragon (hereafter called the Predecessor) and recognized the Intervenor as the representative of those em- ployees. However, the Employer did not adopt the contract between the Intervenor and the Predecessor.3 Following recognition of the Intervenor, the Employer and the Intervenor held negotiation sessions on January 4 and Au- gust 15 lasting 2 or 3 hours each.4 During the hearing, an em- ployer witness testified that following the conclusion of the last meeting, there were no outstanding issues and that the Employ- er thereafter was simply waiting for the Intervenor to sign the contract. On the other hand, an employee witness, who was part of the Intervenor’s negotiating meeting, testified no final agreement on a contract was reached during those sessions. He further testified that after the August meeting, the Intervenor expected the Employer to submit revisions to proposals made during the meeting. However, he did not hear anything further until sometime in October when he was forwarded an email from the President of the Intervenor notifying the Intervenor that a contract had been reached and directing the Intervenor to sign it. It is not clear as to the origination of that instruction.5 Upon receipt of this information, representatives and members 2 Besides Nashville, the cities of Gallatin, Madison, Lawrenceburg, and Cookeville were named during the hearing. However, it is not clear if all the locations were specifically named. The locations are apparently specified in contract HSHQE4-12-D-0004 with the Federal Protective Service. However, neither it nor the specific locations for security services by the Employer were entered into the record. 3 There was no evidence presented to show the Employer changed any wages, hours or working conditions of the employees when it be- gan providing services on December 1, 2012. 4 A meeting scheduled for July 2013 was canceled by the Interve- nor. 5 Neither the email nor a copy of the purported agreement was in- troduced in the record. FJC SECURITY SERVICES 933 of the Intervenor balked at signing the agreement and sought out the Petitioner for representation.6 During the hearing, the Employer representative presented, not one but two contracts between the Employer and the Inter- venor7 which he asserted were signed on November 6, 2013, and became effective on December 1, 2013. Both contracts appear identical except for the unit description. One of the contracts (for purposes here Contract A) was for a unit of all protective security officers at 801 Broadway, and 701 Broad- way, and Ninth Ave, Nashville, Tennessee, excluding irregular part time personnel, office clerical employees, professional employees and supervisors as defined in the Act. This unit would consist of 10 to 12 security officers. The other (for pur- poses here called Contract B) was for a unit of all protective security officers in Nashville and surrounding areas (other than the 801 Broadway, and 701 Broadway, and Ninth Ave. loca- tions) excluding irregular part-time personnel, office clerical employees, professional employees and supervisors as defined in the Act. The unit in Contract B would consist of 15 to 20 security officers. The witness did not provide any notes or other documents as to any of the substance of the negotiations or other testimony regarding the substance of the parties’ dis- cussions between negotiating sessions etc. The witness also did not present any evidence as to what had happened to the agreement he indicated had been reached back in August and/or as to when and why the unit was split from one into two and placed in separate contracts.8 The employee witness testified that all employees of the Employer working under contract HSHQE4-12-D-0004, re- gardless of location, ultimately report to Lieutenant David Cunningham, that scheduling is completed centrally for all locations, that employees bid for posts by seniority and may work or be assigned at any of the locations serviced by the employer, that all employees call into a central time recording system, that if someone is needed in an outpost one of the new- er employees from Nashville will be assigned to cover the post and that all have the same wages and benefits irrespective as to whether they work in Nashville or in outpost locations. THE ISSUES The parties are in apparent agreement that if an election is di- rected any bargaining unit determined should include all full- time and regular part-time protective security officers, includ- ing sergeants, employed by the Employer at those locations in 6 The witness testified that the Intervenor was subsequently put into receivership by the International. 7 The cover pages indicate the contracts are between the Employer and the International Guards Union of America (IGUA), which is the International. However, the recognition clauses state the recognized union is the International Guards Union of America (IGUA) Local 137, which is the Intervenor. There was no evidence presented as to wheth- er Local 137 is a separate legal entity which can serve independently as a bargaining representative or is simply a local designated by the Inter- national to service an Employer for which the International is the legal representative. 8 The employee witness testified he had been present during all the negotiation sessions and that there had been no discussion during the meetings regarding splitting the unit. Nashville and surrounding areas specified in its contract HSHQE4-12-D-0004 with the Federal Protective Services, excluding irregular part-time personnel, office clerical employ- ees, professional employees and supervisors as defined in the Act.9 However, the Employer contends the Petition should be dis- missed because of a successor bar while the Intervenor con- tends there is a contract bar. With respect to the successor bar issue, in UGL-UNICCO Service Co., 357 NLRB 801, (2011), the National Labor Rela- tions Board determined that in cases where a successor em- ployer has expressly adopted existing terms and conditions of employment as the starting point for bargaining, without mak- ing unilateral changes, challenges to a union’s majority could not be made until a reasonable period had elapsed for bargain- ing. In such cases, the Board defined a “reasonable period of bargaining” as 6 months, measured from the date of the first bargaining meeting between the union and the successor em- ployer. The Board further determined that in situations where the successor employer recognized the union, but unilaterally an- nounced and establishes initial terms and conditions of em- ployment before proceeding to bargain, the “reasonable period of bargaining” would be a minimum of 6 months and a maxi- mum of 1 year, measured from the date of the first bargaining meeting between the union and the employer. In determining the length of the reasonable period, the Board directed that the multifactor analysis of Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), should be applied, noting that 6 months represents the approximate time required to reach a renewal agreement while 1 year is the length of the insulated period for newly-certified unions. The factors set forth in Lee Lumber, supra, tending to estab- lish that a reasonable period of time for bargaining has elapsed are: negotiations for a renewal, as opposed to an initial contract, the absence of unusually complex issues or bargaining process- es, the passage of a relatively long period of time after the 6- month insulated period, a relatively large number of bargaining sessions, the parties’ failure to come close to reaching agree- ment, and the existence of impasse. The factors tending to es- tablish that a reasonable time for bargaining has not elapsed: are negotiations for an initial contract, the use of complex bar- gaining processes, the existence of complex issues to be negoti- ated, relatively little passage of time beyond the 6-month peri- od, relatively few negotiating sessions, the absence of impasse, and a strong likelihood that a contract can be reached in the near future. The factors must be considered together, and none is dispositive individually or necessarily entitled to special weight. In every case, the issue is whether the union has had enough time to prove its mettle in negotiations, so that when 9 The Petitioner and the Employer agreed during the hearing and the record supports that Lieutenant David Cunningham and Contract Man- ager Robert Chase are supervisors within the meaning of Sec. 2(11) of the Act. During the hearing, they also agreed and the record supports that Sergeants Doug Stone, Louis Crawley, and Richard Burgess are unit employees without supervisory authority. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934 its representative status is questioned, the employees can make an informed choice. The Employer argues that because this was a first contract the reasonable time for bargaining in this case per UGL- UNICCO, id., is 1 year rather than 6 months. It further argues that even if the initial presumptive period for bargaining was 6 months, a full year should be given because the issues being negotiated between the Employer and Intervenor were com- plex. With respect to this latter argument, no evidence of any complex negotiations or issues was presented during the hear- ing either for the time actually spent in the two short negotia- tion sessions held over 7 months apart or for any time between such meetings or thereafter prior to the filing of the Petition in this matter. Rather, it is suggested I draw that conclusion simp- ly by comparing the differences between the Predecessor’s contract and the resulting contracts signed on November 6, 2013. Although the contracts do contain differences, many simply involve wording or rearranging of articles. While others might be more substantial, I cannot simply presume the Inter- venor and the Employer had significant disagreements on any proposals during negotiations. It was incumbent on the Em- ployer to present evidence of such during the hearing and it did not do so. With respect to the former argument, as noted above, there was no evidence presented that the Employer substantially changed any wages or other terms of conditions of employment upon beginning operations on December 1, 2012. The first negotiation session was held on January 4, 2013, lasting 2 or 3 hours in length. Thereafter, the parties did not meet again until more than 7 months later on August 14, 2013, for a meeting again lasting just 2 or 3 hours. The Employer’s witness testi- fied there were no outstanding issues at the conclusion of the last negotiation session and the Employer was just waiting for the Intervenor to get back with a signed contract. Thereafter, in early October 2013 the Intervenor was directed to sign a con- tract. Thus an agreement appears to have been reached. How- ever, it was not signed by the parties. On October 28, 2013, almost 10 months from the time of the commencement of nego- tiations, the original petition was filed. It was not until No- vember 6, 2013, the Employer and Intervenor actually signed any collective-bargaining agreements, i.e., those splitting the unit into parts.10 Both Lee Lumber and UGL-UNICCO, supra, were intended to give labor organizations in a reasonable time for bargaining to prove their mettle in negotiations to the employees they rep- resent without their majority being challenged. Inasmuch as both the Employer and the Intervenor both assert an agreement was, in fact, reached prior to the petition being filed I do not believe that Lee Lumber and UGL-UNICCO, supra, apply in 10 As noted, there was no discussion regarding the reasons for split- ting the unit, when the parties began discussing it or when they agreed to it. It is noteworthy that the unit in Contract A coincides roughly with what the Employer and Intervenor’s positions are as to what unit was being sought by the Petitioner in its amended October 31 petition (ex- cluding the reference to the officers being sought as part of the Middle District of Tennessee judicial district) while the unit in Contract B contains all the other employees employed by the Employer pursuant to its contract HSHQE4-12-D-0004 with the Federal Protective Service. this case as no additional time for bargaining is necessary. The Intervenor has demonstrated its mettle with the employees and those employees are in a position to make an informed choice as to their choice of representative.11 Under these circumstances, I find that a successor bar does not apply in this matter and that the employees in the unit should be given an opportunity to express their choice of repre- sentative through a secret ballot election absent a contract bar. With respect to the contract bar issue, the Board has long held that, for contract-bar purposes, an agreement must meet certain formal and substantive requirements, including the re- quirement that the document proposed as a bar be signed by both parties prior to the filing of the petition that it would bar. Appalachian Shale Products Co., 121 NLRB 1160 at 1161 (1958). The Board has also long held that the party, asserting that a contract operates as a bar bears the burden of proving that the contract was signed by both parties before a petition was filed. Roosevelt Memorial Park, Inc., 187 NLRB 517 (1970). See also Bo-Low Lamp Corp., 111 NLRB 505 (1955), and Ap- palachian Shale, supra at 1160. Finally, the Board has held that where the evidence presented in support of a contract bar is vague, uncertain or inconsistent, a contract bar will not be found. Road & Rail Services, 344 NLRB 388 (2005). In the instant case, there were clearly no signed contracts prior to November 6, 2013. Thus, there is no bar to the filing of the Petition on October 28 or to the October 31 amendment. The question remains, however, as to whether one or both of the contracts signed on November 6, 2013, may serve as a bar to the amendment of the petition at the hearing on December 3, 2013. The Board has held that after a contract is properly executed after the filing of a petition but prior to an amendment of the petition, a contract bar may apply if the amendment so substan- tially departs from the original petition as to constitute a new petition. See Centennial Development Co., 218 NLRB 1284 (1975). In the instant case, the October 31 amended petition sought all court security officers and lead security officers employed by the Employer under contract with the United States Mar- shals Service in Nashville, Tennessee, at 801 Broadway and 9th Ave. all of which are part of the Middle District of Tennessee judicial district.12 The amendment at the December 3, 2013 hearing clarified that the Petitioner was seeking to represent all security officers in Nashville and the surrounding areas in Mid- dle Tennessee. The Employer’s witness at the hearing testified there are 10–12 security officers in Nashville and 15–20 securi- 11 Even assuming for the sake of argument that the principles of Lee Lumber and UGL-UNICCO, supra, apply, the totality of the evidence presented demonstrates that neither the Employer nor the Intervenor had any sense of urgency in reaching an agreement following the com- mencement of negotiations, meet infrequently and for short periods of time. In the absence of any evidence of complex issues keeping the parties from reaching an agreement, I would find the 10-month period they had for bargaining in this case prior to the Petition being filed was a reasonable period of time for bargaining. 12 As indicated above, this amendment was made to account for the fact that the Jackson and Memphis locations in the original petition were no longer a part of the area to be serviced by the Employer. FJC SECURITY SERVICES 935 ty officers in the areas surrounding Nashville. The October 31 amended petition indicates approximately 30 unit employees. Thus, while the unit description may have been inartfully worded, the size of the unit indicated and the inclusion of the wording “all part of the Middle District of Tennessee judicial district” makes it clear that in the October 31 amended Petition the Petitioner was seeking more than just the 10–12 security officers working solely within Nashville. As the record demonstrates, all the security officers working pursuant contract HSHQE4-12-D-0004 for the Employer re- gardless of location perform the same type of work, share simi- lar working conditions, wages, benefits, commonly bid for posts, and work both within and outside of Nashville as needed, and that all ultimately are supervised by Lieutenant Cunning- ham. Thus, they appear to have a strong community of interest with each other. In short, I find that the amendment was not so substantial as to constitute a new petition, and that the contracts signed on November 6, 2013, would not have barred the amendment to the petition at the hearing on December 3, 2013. In conclusion, I find there is neither a successor nor contract bar to the processing of the Petition. CONCLUSIONS AND FINDINGS Based upon the entire record in this matter and in accordance with the discussion above, I conclude and find as follows: 1. The hearing officer’s rulings made at the hearing are free from prejudicial error and are hereby affirmed. 2. The Employer is engaged in commerce within the mean- ing of the Act and it will effectuate the purposes of the Act to assert jurisdiction in this case. 3. The Petitioner and the Intervenor are labor organizations within the meaning of Section 2(5) of the Act and claims to represent certain employees of the Employer. 4. A question affecting commerce exists concerning the rep- resentation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 5. The following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All full time and regular part time protective security officers, including sergeants, employed by the Employer at locations in Nashville and surrounding areas (as specified in its contract HSHQE4-12-D-0004 with the Federal Protective Services and in any successor contracts for locations in Nashville and surrounding areas), excluding irregular part time personnel, office clerical employees, professional employees and super- visors as defined in the Act. DIRECTION OF ELECTION Inasmuch as the employees are scattered throughout Nash- ville and surrounding areas in Tennessee and do not report to a locations of work under the control of the Employer, a manual election is not feasible in this matter. Accordingly, the Nation- al Labor Relations Board will conduct a secret-ballot election by mail among the employees in the unit found appropriate above. The employees will vote whether or not they wish to be represented for purposes of collective bargaining by the United Government Security Officers of America International Union and its Local 350, Neither, or the International Guards Union of America. The date, time, and place of the mail-ballot election will be specified in the Notice of Election that will issue subse- quent to this Decision. A. Voting Eligibility Eligible to vote in the election are those in the unit who are employed during the payroll period ending immediately before the date of this Decision, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Employees engaged in any economic strike, who have retained their status as strikers and who have not been permanently replaced are also eligible to vote. In addition, in an economic strike which commenced less than 12 months before the election date, employees engaged in such strike who have retained their status as strikers but who have been permanently replaced, as well as their replacements are eligible to vote. Unit employees in the military services of the United States may vote if they appear in person at the polls. Ineligible to vote are (1) employees who have quit or been discharged for cause since the designated payroll period; (2) striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date; and (3) employees who are engaged in an economic strike that began more than 12 months before the election date and who have been permanently replaced. B. Employer to Submit List of Eligible Voters To ensure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses, which may be used to communicate with them. Excelsior Underwear, Inc., 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accord- ingly it is hereby directed that within seven (7) days of the date of this Decision, the Employer must submit to the Regional Office an election eligibility list, containing the full names and addresses of all the eligible voters. North Macon Health Care Facility, 315 NLRB 359, 361 (1994). This list must be of suf- ficiently large type to be clearly legible. To speed both prelim- inary checking and the voting process, the names on the list should be alphabetized. This list may initially be used by me to assist in determining an adequate showing of interest. I shall, in turn, make the list available to all parties to the election, only after I shall have determined that an adequate showing of inter- est among the employees in the unit found appropriate has been established. To be timely filed, the list must be received in the National Labor Relations Board Nashville Resident Office, 810 Broad- way, Suite 302, on or before December 18, 2013. No exten- sion of time to file this list will be granted except in extraordi- nary circumstances, nor will the filing of a request for review affect the requirement to file this list. Failure to comply with this requirement will be grounds for setting aside the election whenever proper objections are filed. The list may be submit- ted to the Regional Office by electronic filing through the Agency website, www.nlrb.gov, by mail, by hand or courier delivery, or by facsimile transmission at (404) 331–2858. The DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936 burden of establishing the timely filing and receipt of the list will continue to be placed on the sending party. To file the eligibility list electronically, go to the Agency’s website at www.nlrb.gov, select File Case Documents, enter the NLRB Case Number, and follow the detailed instructions. The burden of establishing the timely filing and receipt of the list will con- tinue to be placed on the sending party. C. Notice Posting Obligations According to Section 103.20 of the Board’s Rules and Regu- lations, the Employer must post the Notices to Election provid- ed by the Board in areas conspicuous to potential voters for at least 3 full working days prior to 12:01 a.m. of the day of the election. In elections involving mail ballots, the election shall be deemed to have commenced the day the ballots are deposit- ed by the Regional Office in the mail. In all cases, the notices shall remain posted until the end of the election. The term “working day” shall mean the entire 24-hour period excluding Saturday, Sundays, and holidays. Failure to follow the posting requirement may result in additional litigation if proper objec- tions to the election are filed. Section 103.20(c) requires an employer to notify the Board at least 5 full working days prior to 12:01 a.m. of the day of the election if it has not received copies of the election notice. Club Demonstration Services, 317 NLRB 349 (1995). Failure to do so estops employers from filing objections based on nonposting of the election notice. RIGHT TO REQUEST REVIEW Under the provisions of Section 102.67 of the Board’s Rules and Regulations, a request for review of this Decision may be filed with the National Labor Relations Board, addressed to the Executive Secretary, 1099 14th Street, NW, Washington, DC 20570-0001. This request must be received by the Board in Washington by 5:00 P.M., (EDT) on December 26, 2013. The request may be filed electronically through E-Gov on the Board’s web site, www.nlrb.gov,13 but may not be filed by facsimile. Dated at Atlanta, Georgia, on this 11th day of December 2013. 13 To file the request for review electronically, go to www.nlrb.gov and select the E-Gov tab. Then click on the E-Filing link on the menu and follow the detailed instructions. Guidance for E-filing is contained in the attachment supplied with the Regional Office’s initial corre- spondence on this matter and is also located under “E-Gov” on the Board’s website, www.nlrb.gov.